Legal Responses to Criminal Organisations in NSW

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1 RULE OF LAW INSTITUTE OF AUSTRALIA Contents Legal Responses to Criminal Organisations in NSW The Rule of Law Principle in Australia 2 The Consorting Law in NSW 3 Cartoon: How to Avoid Consorting with Criminal Offenders in NSW 4 Legal Response: Control Orders and Criminal Organisations 5 The History of the CCOCA Laws in NSW 6 Rule of Law Concerns about Consorting CCOCA Balancing the Needs of Society with the Rights of the Individual 8 Law Reform Issue: Changes to the Right to Silence in NSW 9 Glossary 10 Suggested Reading 11 Legislation and Case law By Year 12 Legislation and Case Law By State 13 The Rule of Law Institute of Australia is an independent not-for-profit organisation which promotes discussion of rule of law issues in Australia. It seeks to uphold transparency and accountability in government and strongly supports the presumption of innocence, independence of the judiciary and procedural fairness in the Australian legal system. For further information visit our website: Have a question about this resource or a rule of law issue? Ask us on Facebook or Twitter: Rule of Law Institute of Australia

2 What is the Rule of Law? The principles in the pyramid are essential parts of the rule of law in Australia. All are important in promoting confidence in Government, and protecting the rights of individuals. Operation of the rule of law promotes a stable economy and happy citizens. The rule of law is a legal concept which requires the use of power to be controlled by the law to ensure equality before the law. LAW GOVERNMENT The separation of powers in Australia ensures that power is balanced between the three arms of government and that there are checks on their use of power. Maintaining the rule of law is often noted as being the best way to preserve human rights. LAW If people believe the law is unjust, they may not want to follow it. Ideally people should feel the law is just and want to follow it. The process of changing the law through democratic processes ensures that the law remains up to date with the needs of society. The Judiciary is especially important in ensuring the integrity of the Australian Constitution and that the Legislature and Executive act according to the law. Legislature LAW LAW LAW Judiciary Executive

3 The Consorting Law in NSW What is consorting? Consorting with criminal offenders is an offence under the Crimes Act 1900 (NSW). It allows the police to prosecute a person who has consorted with at least two convicted offenders on two separate occasions. Police must give an oral or written warning to a person to inform them that the people they are associating with are convicted offenders. Purpose of Law Reform The consorting offence was introduced to target criminal organisations such as outlaw motorcycle gangs, and prevent their members from associating. Defences to Consorting A person must prove to the court that the consorting was reasonable. Circumstances such as consorting with a family member, in the course of lawful employment, training or education, and during the provision of health care or legal advice are the defences to consorting included in the Crimes Act 1900 (NSW) legal terminology involved in defining the consorting charge: consort - to associate with a person, including by electronic or other form of communication. convicted offender - a person who has been found guilty of an indictable offence. habitually consort - to consort with at least 2 convicted offenders, on two separate occasions. official warning - a oral or written warning from a police officer given to inform a person that a convicted offender is a convicted offender, and that consorting with them is an offence. Rewrite the following sentence into a paragraph to include the terminology used in the consorting offence: 3 A person must habitually consort with convicted offenders after receiving an official warning from NSW Police. Case: R v Foster [2012] Local Court NSW Charles Foster was the first person to be found guilty of consorting with convicted offenders in July Foster had consorted with convicted offenders who were long time friends, one of which he was living with at the time. He had no links with criminal organisations despite having served time in jail for other offences. He received a sentence of 12 months with a non-parole period of 9 months. He appealed his conviction in the District Court of NSW and was allowed a retrial. High ranking members of the Nomads Motorcycle Club were charged with consorting in late Foster has joined an appeal against the consorting laws in the NSW Supreme Court. As of June 2013 that matter is yet to come before the court.

4 2 WARNING!! To help police in the fight against organised crime, you can now be charged for consorting with convicted offenders. Be on your guard: a convicted offender is someone who has been found guilty of an indictable offence! RoLIA You CONSORTING & (to be in company with) Police Convicted Offender Convicted Offender You Cartoon: How to Avoid Consorting with Criminal Offenders in NSW? You HOW TO AVOID CONSORTING WITH CRIMINAL OFFENDERS IN NSW To be found guilty of consorting it must be proven you consorted with at least 2 convicted offenders. Before you can be charged, police must warn you in writing or in person that the people you are consorting with are convicted offenders!? A guide from the Rule of Law Institute of Australia 1 Consorting with criminal offenders is serious business. You might end up in prison and become a convicted offender yourself. If you are caught consorting police may charge you. If proven in court you could go to jail for up to 3 years. There are defences you can use if you have been consorting with certain people, but you must satisfy the court it was reasonable provided: a family member, a coworker, a teacher or fellow student, a doctor or a lawyer. 3 Incoming Call Innocent Person ANSWER Convicted Offender Convicted Offender Calling... Convicted Offenders END CALL You You You Police Be careful not to associate with convicted offenders! 4 5 After you have been warned you still need to consort with the convicted offenders on at least two separate occasions. Beware: this includes over electronic forms of communication like SMS, , or telephone.

5 Legal Response: Control Orders and Criminal Organisations The Crimes (Criminal Organisations Control) Act 2012 (NSW) called CCOCA 2012 provides a legal process for an organisation, such as a motorcycle club, to be declared as being involved in serious criminal activity. This process allows control orders to be made to prevent its members from associating, recruiting new members or working in certain occupations. Evidence of an organisation s involvement in serious criminal activity is supplied for the Supreme Court of NSW to consider whether to make a declaration against an organsation. If a declaration is made the NSW Police can apply for control orders against individual members of the declared organisation. A controlled member cannot: associate with another controlled member of the organisation recruit new members for the organisation use or possess a firearm or work as a: tow truck driver, bouncer, body guard, security guard, private detective, debt collector, employee or operator of a casino, pawn broker, motor vehicle dealer or repairer, seller or supplier of liquor, operator of or employee in a tattoo parlour, bookmaker, jockey, owner or trainer of horses and grey hounds. Legal Process in CCOCA Information is Declared Criminal Intelligence Punishment for Breaching a Control Order It is a criminal offence to breach a control order and carries a penalty of up to 3 years imprisonment for a first offence and 5 years for a second offence. To prove a breach of the control order police only need to show the person associated with another controlled member, not that they associated to plan or participate in any criminal activity. The NSW Police make an application to the Supreme Court of NSW to have information declared criminal intelligence The hearing to declare criminal intelligence is a closed hearing. Members of the public are not allowed to attend, and those who are the subject of the information may not participate. 5 2 Police Apply for Declaration of Organisation 3 Police Apply for Control Orders Against Individuals A retired judge/lawyer is appointed as the criminal intelligence monitor and can make submission about the validity of the application An application is made by the NSW Police Commissioner to have an organisation declared under the CCOCA. If criminal intelligence is used in the application to declare the organisation, members of that organisation cannot be present when that information is before the court. If successful, the declaration allows control orders to be made for members of the organisation. A declaration lasts for 5 years. Individuals are served with control orders which prohibit them from associating with other controlled members of the organisation, and from engaging in certain forms of work A control order remains in force until it is revoked by the court A control order can be appealed within 28 days of it being made

6 The History of the CCOCA Laws in NSW The CCOCA laws have changed significantly since 2009 when the first Crimes (Criminal Organisations Control ) Act 2009 (CCOCA 2009) was introduced in response to a number of drive-by shootings and the bashing murder of a Hells Angels associate during a confrontation between the Hells Angels and Comancheros at Sydney Airport. The Hells Angels Motorcycle Club was the first (and only) organisation to be declared under the CCOCA A former President of the club, Derek Wainohu, challenged the laws in the High Court of Australia in 2010 and was successful in having the CCOCA 2009 struck down in Wainohu v NSW [2011] HCA 24. In that case, six of the seven High Court Judges found CCOCA 2009 was invalid because it did not require written reasons for declaring an organisation. The High Court found that this was inconsistent with the institutional integrity of the Supreme Court of NSW under Chapter III of the Australian Constitution. Institutional integrity means that courts in Australia must have certain essential characteristics, one of which is that judges must give reasons for their decisions. Purpose of CCOCA Destroy the chain of command and disrupt the criminal activities of organisations by making it a criminal offence for their members to associate Give police and the courts broader powers and offences to deal with criminal organisations To prevent violent incidents such as drive by shootings, intimidation and other serious violence offences CCOCA 2012 was passed in March 2012 and is the same as CCOCA 2009 except it requires judges to give reasons for their declarations. In March 2013, following the failure of a challenge to Queensland s equivalent of CCOCA 2012, amendments to CCOCA 2012 were passed which broadened the definition of serious criminal activity, and lengthened the duration of a declaration from 3 to 5 years. The most significant amendment was to the process of having information used for a declaration made into criminal intelligence. See the previous page for details on the process of declaring criminal intelligence and criminal organisations, and the making of control orders. CCOCA, the High Court and the Separation of Powers In Wainohu v NSW [2010] the High Court ruled that the CCOCA 2009 laws went against the institutional integrity of the courts because when declaring an organisation the judge was not required to give reasons. Giving reasons for a decision is an essential part of the role of judges. The role of the courts in dealing with crime is to hear cases, interpret the law and provide a sentence according to the law if the accused is found guilty. The consorting and CCOCA laws are examples of the NSW Parliament passing laws which change the role of the courts. These offences aim to prevent crime, not punish crimes which have been committed. Whether this use of the courts is compatible under the Australian Constitution and the rule of law may be decided in future High Court cases. 6

7 Rule of Law Concerns about Consorting CCOCA 2012 The Rule of Law Institute of Australia has the following concerns about the consorting offence and the CCOCA 2012: Consorting with Criminal Offenders A person found guilty is charged with the act of associating which is of itself not a criminal act. The amount of people in the community who are convicted offenders makes the possible application of this offence very broad. The offence was introduced to target members of criminal organisations, however, it is defined broadly and can be used widely at the Police s discretion to target people not involved with criminal organisations. Punishing someone with imprisonment for associating with convicted offenders is not productive given they will spend more time with convicted offenders in jail The convicted offenders involved in proving the offence are being indirectly punished for who they are, not what they have done. CCOCA 2012 The presumption that people are innocent until proven guilty is removed by the CCOCA. This means that a person can be imprisoned for breaching a control order without ever being found guilty of a criminal offence Information which does not follow the rules of evidence can form the basis of a control order - hearsay is allowed Information used for declarations can be declared as criminal intelligence which cannot be seen or challenged by the subject of the control order. It is a key aspect of procedural fairness that a person can question evidence or information used against them If evidence is available that a person is involved with serious criminal activity; they should be charged with the relevant criminal offence, not for the act of associating. The Rule of Law Institute of Australia is an independent not-for-profit organisation which promotes discussion of rule of law issues in Australia. It seeks to uphold transparency and accountability in government and strongly supports the presumption of innocence, independence of the judiciary and procedural fairness in the Australian legal system. 7 Discussion How far should laws go to ensure public safety? Laws which give police powers to search seize property, and conduct surveillance? Laws which make it an offence to associate with people who have criminal records? The power to force someone to answer questions and punish them with imprisonment if they do not answer, or answer falsely? The right to detain and question people even if they are not suspected of a crime? The rule of law requires that the use of power is and those who use them are. All people are entitled to the presumption of, and can only be punished if they are found of an offence.

8 Balancing the Needs of Society with the Rights of the Individual Organised crime and violence should not be tolerated in Australian society. The courts and police should be able to prosecute criminal organisations to protect the public from violence and criminal activities; however, there is a delicate balance between protecting the public and trampling on rights and freedoms. Limits to Individual Rights The presumption of innocence is eroded because control orders allow a person to be imprisoned simply for associating with someone While there are good reasons to keep criminal intelligence secret, its use in this way erodes the principle of open justice, including the principle that a person should be able to see and question the evidence against them If evidence exists of individuals being involved in serious criminal activity, they should be charged with existing criminal offences, not for just associating with others. This entitles them to the protections of the criminal trial process. Possible Solutions Law reform and government should focus on ways to support the police prosecuting members of criminal organisations for criminal offences, not an offence which relies on criminalising association. Law enforcement agencies already have extensive powers allowing surveillance, search and seizure of goods, as well as compelling people to answer questions. Are anti-association laws necessary when such extensive powers are already available to law enforcement agencies? Placing a sunset clause on the consorting offence and CCOCA which asks Parliament to review the effectiveness of the law after a fixed period. Practice Questions a) Identify the legal responses to criminal organisations in NSW since b) Describe the process of obtaining a control order on a member of a criminal organisation. c) Explain how the consorting laws and CCOCA can limit individual rights. d) Assess whether the consorting and CCOCA laws can provide just outcomes for individuals and society.

9 Law Reform Issue: Changes to the Right to Silence in NSW What changed? The Evidence Act 1995 (NSW) was amended to allow a judge to direct a jury to draw an unfavourable inference if the accused does not mention something when questioned by police. The person must be given the special caution by police in the presence of their lawyer which can only be used Old Caution if the person is charged with an offence carrying a penalty of 5 years or more imprisonment. The special caution and unfavourable inference cannot be used in the trial of a person who is under 18 years of age. New Special Caution I am going to ask you some questions. You do not have to say or do anything unless you wish to do so but anything you do say will be used in evidence. You are under arrest for. You do not have to say or do anything unless you wish to do so, anything you do say will used in evidence. It may harm your defence if you do not mention when questioned something you later rely on in court. What is a jury direction? At the end of a trial the judge directs the jury on what it must consider when deliberating. See the Judicial Commission of NSW s Bench Book on instructing juries about the right to silence: Note: this version does not yet include suggested directions for judges to use with the new special caution. What is an unfavourable inference? The judge can instruct the jury to use the accused s silence when questioned as evidence of guilt or that their evidence is unreliable. An unfavourable inference cannot be the only factor in deciding guilt, other evidence must be provided by the prosecution. Pre-trial Disclosure Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 (NSW) Makes the defence and prosecution provide details of their case to each other before the trial. Previously, the defence only had to reveal specific aspects of their case pre-trial such as alibis and if they intended to offer the defence of mental impairment. Police have stated that these laws will allow them to deal more effectively with the wall of silence they encounter when prosecuting criminal organisations. Evaluate and Discuss 9 Benefits To the prosecution - silence of the accused can form evidence of guilt. This places pressure on a defendant to answer questions pre-trial, and anything new they do say during the trial is subject to an unfavourable inference. May reduce the length and complexity of some trials by discouraging a defendant from raising new evidence. The defence cannot surprise the prosecution with new evidence in the middle of the trial Limitations Damages the presumption of innocence and limits the right to silence Caselaw: The High Court in Petty and Maiden v the Queen [1991] HCA 34 Defendants who are in a vulnerable to direct the jury that it was state, confused, stressed, or have poor open to them to draw an adverse English, will not have the protection of inference about its genuineness the right to silence when questioned from the fact that the accused had not previously raised it Limits the advice lawyers can give would be to convert the right to their clients. Lawyers may be reluctant remain silent into a source of to attend police stations when an entrapment and that such an accused is questioned by police erosion of the fundamental right should not be permitted Pre-trial disclosure of defence cases may increase costs for the defence

10 Glossary Consort/Associate To be in the company of a person or to communicate with them by any means, including by phone, , or any other form of electronic communication. CCOCA An acronym for two acts of NSW Parliament: The Crimes (Criminal Organisations Control) Act 2009 (NSW) was struck down by the High Court in Wainohu v NSW [2011], the Crimes (Criminal Organisation Control) Act 2012 was in force at the time of publication in May Control order An order made for an individual under CCOCA The conditions of the order prevent the individual from seeing other controlled members, recruiting new members to the organisation, and engaging in certain types of employment. Criminal Intelligence Evidence gathered by police which is kept confidential because its release may harm existing criminal investigations, or endanger police informants. Criminal Offence A criminal offence is usually comprised of two elements: actus reus, (the guilty act), and mens rea, (the guilty mind). In the case of the CCOCA the offence for breaking a control order only requires that the guilty act be proven in court. Rule of Law The principle that all are subject to the law, and that power is used according to the law. The presumption of innocence and open justice are key values in ensuring the use of power remains accountable and transparent. Serious criminal activity Receiving benefit from actions which constitute a serious indictable offence, or committing a serious violence offence. Serious indictable offence An offence charged by indictment with a penalty of 5 years or more imprisonment. Serious violence offence An offence punishable by 10 years or more imprisonment which causes loss of life, serious injury or risk, and serious damage to property or safety of any person. See s3 of CCOCA 2012 for the full definitions Still have a question? Ask us on: Declared Organisation An organisation declared by a judge to be involved in serious criminal activity under CCOCA The members of a declared organisation may be the subject of control orders. Open justice The principle that trials and court proceedings should be open to the public and the media so justice can be seen to be done. Presumption of Innocence The principle that people are treated as innocent until proven guilty by a court. This means a person must be referred to as the accused unless they have been found guilty of a crime.

11 Cases, Legislation & Further Reading Legislation Consorting Crimes Act 1900 (NSW) Control Orders Legislation Crimes (Criminal Organisations Control) Act 2009 referred to as CCOCA 2009 Crimes (Criminal Organisations Control) Act 2012 referred to as CCOCA 2012 Other Laws Reformed to Target Criminal Organisations Tattoo Parlours Act 2012 (NSW) Evidence Act 1995 (NSW) Cases R v Foster [2012] Local Court of NSW Wainohu v NSW [2011] HCA 24 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 Suggested Reading The Hon Kevin Lindgren AM QC, The Rule of Law: Its State of Health in Australia - Health-in-Australia-2012.pdf Malcolm Stewart, Individual Rights or the Imperatives of the state which should be paramount under the rule of law?, pp Individual-Rights-or-the-Imperatives-of-the-State.pdf Victorian Parliamentary Research Service: Queensland Parliamentary Library and Research Service: ResearchBriefs/2012/RBR pdf 11

12 Legislation and Case law By Year 2008 The Serious Organised Crime (Control) Act 2008 (SA) came into force on the 15 May The Crimes (Criminal Organisations Control) Act 2009 (NSW) came into force in March The South Australian Finks Motorcycle Club was declared under the Serious Organised Crime (Control) Act 2008 (SA) on 14 May The Serious Crime Control Act 2009 (NT) came into force on 11 November The Criminal Organisation Act 2009 (Qld) came into force on 3 December The NSW Hells Angels Motorcycle Club was declared under the Crimes (Criminal Organisations Control) Act 2009 (NSW) in July The High Court strikes down provisions of the South Australian Act making it unusable but not invalid in South Australia v Totani [2010] HCA The High Court strikes down the NSW Act in Wainohu v NSW [2011] HCA 24 (23 June 2011) The Crimes (Criminal Organisations Control) Act 2012 (NSW) addressed the issues raised in Wainohu v NSW [2011] and came into force on 21 March Addressing aspects of South Australia v Totani [2010] and Wainohu v NSW [2011] the Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012 (SA) came into force on 10 May 2012 and fixed the provisions struck down by the High Court. The Gold Coast Chapter of the Finks Motorcycle club was declared under the Criminal Organisations Act 2009 (Qld) on 1 June The Criminal Organisations Control Act 2012 (Vic) came into force on 3 November The Criminal Organisations Control Act 2011 (WA) came into force on 29 November The High Court upholds the QLD Act in Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (14 March 2013) The Crimes (Criminal Organisations Control) Amendment Act 2013 (NSW) came into force on 3 April 2013 and added provisions upheld in Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (14 March 2013).

13 Legislation and Case Law By State NSW Crimes (Criminal Organisations Control) Act The Crimes (Criminal Organisations Control) Act 2009 (NSW) came into force in March The Hells Angels Motorcycle Club was declared under the Act in July The High Court strikes down the Act in Wainohu v NSW [2011] HCA 24 (23 June 2011). The Crimes (Criminal Organisations Control) Act 2012 (NSW) addressed the issues raised in Wainohu v NSW [2011] and came into force on 21 March The Crimes (Criminal Organisations Control) Amendment Act 2013 (NSW) came into force on 3 April 2013 and added provisions to the Act upheld in Assistant Commisioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (14 March 2013). South Australia Serious Organised Crime (Control) Act 2008 The Serious Organised Crime (Control) Act 2008 (SA) came into force on the 15 May The Finks Motorcycle Club was declared under the Act on 14 May The High Court strikes down provisions of the Act making it unusable in South Australia v Totani [2010] HCA 39. Addressing aspects of South Australia v Totani [2010] and Wainohu v NSW [2011] the Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012 came into force on 10 May 2012 and fixed the provisions struck down by the High Court. 13 Queensland Criminal Organisation Act 2009 The Criminal Organisation Act 2009 (Qld) came into force on 3 December The Finks Motorcycle club was declared under the Act on 1 June The High Court upholds the Act in Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (14 March 2013). The Vicious Lawless Association Disestablishment Act 2013, Criminal Law (Criminal Organisations Disruption) Amendment Act 2013, Tattoo Parlours Act 2013 were all passed into law on the 17 October Western Australia The Criminal Organisations Control Act 2011 (WA) came into force on 29 November Victoria The Criminal Organisations Control Act 2012 (Vic) came into force on 3 November Northern Territory The Serious Crime Control Act 2009 came into force on 11 November 2009.

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